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Society Supporting Protection of Preservation Area Had Standing to Challenge Waiver Allowing Business to Operate in Area

The Second Department determined that the petitioners had standing to challenge the planning commission’s determination that the respondents should be granted a hardship waiver (Environmental Conservation Law 57-0121(10)) to continue a commercial landscaping and horticultural services business in a preservation area (Long Island Central Pine Barrens).  Richard Amper, in his capacity as Executive Director of […]

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“Undue Influence” and “Fraud” Criteria Explained Re: Objections to Probate of a Will

The Second Department, in affirming Surrogate’s Court’s dismissal of objections to the probate of a will, explained the criteria for a demonstration of “undue influence” and “fraud:” “An objectant contesting the admission of a propounded instrument to probate based on the alleged exercise of undue influence must show that the influence exercised amounted to a […]

Supreme Court’s Reliance On a Punctuation Error to Support Its Contract Interpretation Rejected

In a full-fledged opinion by Justice Andrias, the First Department reversed Supreme Court’s interpretation of a contract clause, finding the interpretation was based upon a typographical error: …”[I]t is a cardinal principle of contract interpretation that mistakes in grammar, spelling or punctuation should not be permitted to alter, contravene or vitiate manifest intention of the […]

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Court May Impliedly Vacate Note of Issue by Directing Discovery

Although the trial court did not impliedly vacate the note of issue in this case, the Third Department explained the criteria for such a vacation: A court may be deemed to have vacated a note of issue sua sponte, even without explicitly stating so, if the court’s directives with respect to discovery “clearly evince its […]

Notice of Voluntary Discontinuance Filed After Opponents’ Motions to Dismiss Is Untimely

The First Department determined plaintiff’s (BDO’s) notice of voluntary discontinuance was untimely because it was filed after the defendants filed motions to dismiss: BDO unilaterally filed a notice of voluntary discontinuance. This notice was untimely because BDO served it after defendants filed their motions to dismiss (see CPLR 3217[a][1]; … David D. Siegel, Practice Commentaries, […]

Judicial Estoppel Applies Only to Party Who Prevailed in Prior Proceeding

The First Department explained that the concept of judicial estoppel only applies to the prevailing party in the prior action: Contrary to defendant’s argument, plaintiffs’ previous assertion of their own claim for contractual indemnification does not judicially estop them from denying that defendant is entitled to indemnification of attorneys’ fees under the agreement. The doctrine […]

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Attorney’s Defamation Suit Against Client Based Upon Letters Sent to the Attorney by the Client Dismissed

In a full-fledged opinion by Justice Saxe, the First Department determined that letters written by a client to an attorney, terminating the attorney’s employment, were not actionable under a defamation theory for three reasons: the statements constituted opinion; the statements were absolutely privileged; and the statements were qualifiedly privileged.  With respect to qualified privilege, the […]

Question of Fact Whether Vacuuming an HVAC Duct Was a Covered Cleaning Activity Under the Labor Law

The Second Department determined there was a question of fact whether vacuuming an HVAC duct was a covered “cleaning” activity under Labor Law 240(1): Outside the sphere of commercial window washing (which is covered by Labor Law § 240[1]), the determination of whether an activity may be characterized as “cleaning” under the statute depends on […]

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